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Case 8:10-bk-05213-CPM
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION - - - - - - - - - - - - - - - x IN RE: : : MARSHA LAMBERT MAINES, : Case No. 10:08-bk-5213 : Chapter 13 Debtor : - - - - - - - - - - - - - - - x U.S. Courthouse 801 N. Florida Avenue Tampa, Florida November 22, 2011 1:47 P.M. HEARING 1-FEH On Debtors Motion For Injunction, Contempt And Sanctions 2-FEH On Debtors Motion For Contempt Against Bank Of America 3-FEH on Debtors Motion For Injunction 4-FEH On Debtors Motion To Strip The Unsecured Non Priority Claim Lien And Motion For Summary Judgment And Motion For Contempt And Sanctions Against Samuel I. White, PC
BEFORE THE HONORABLE CATHERINE PEEK MCEWEN United States Bankruptcy Judge
______________________________________________________________ JOHNSON TRANSCRIPTION SERVICE 7702 Lake Cypress Drive Odessa, Florida 33556 (813) 920-1466
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APPEARANCES: For the Debtor: MARSHA LAMBERT MAINES, Pro Se P.O. Box 530223 St. Petersburg, FL 33747 SARAH HOLLADAY-TOBIAS, Esquire McGuire Woods LLP 50 North Laura Street Suite 3300 Jacksonville, Florida 32202-3661 (904)798-2662 sfhollad@mcguirewoods.com
For Bank of America, N.A.:
ALSO PRESENT: Bank of America Representative: David Henderson: Dan Shadwell: Karen Slyapich McGuire Woods Paralegal With Ms. Maines
JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466
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INDEX TO EXAMINATIONS WITNESS: KAREN SLYAPICH Direct Examination by Ms. Holladay-Tobias Cross-Examination by Ms. Maines Redirect Examination by Ms. Holladay-Tobias Page 42 Page 47 Page 55
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INDEX TO EXHIBITS DEBTORS EXHIBITS Exhibit Description Admitted Page 26
Exhibit 1 Judicial notice of the fact of the deadlines, the hearings, the content of the objection to the claim, Courts order sustaining the objection to the claim Exhibit 2 Copy of the deed Exhibit 3 Certificate of Acknowledgment
Page 29 Page 30
BANK OF AMERICAS EXHIBITS Exhibit 1 Original Promissory Note Page 40
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 client? 5213. THE COURT:
P R O C E E D I N G S COURTROOM DEPUTY: Marsha Maines, Case Number 10-
Okay, the Court will take appearances. Good afternoon, Your Honor. Im here on behalf of Bank of My
MS. HOLLADAY-TOBIAS: name is Sarah Holladay-Tobias.
America, National Association, which is the successor by merger to BAC Home Loan Servicing, LP, which was formerly known as Countrywide Home Loan Servicing, LP. THE COURT: How do you want me to refer to your
MS. HOLLADAY-TOBIAS: THE COURT: BANA?
BANA will be fine.
MS. HOLLADAY-TOBIAS: THE COURT: B-A-N-A?
BANA.
MS. HOLLADAY-TOBIAS: THE COURT: And? MS. SLYAPICH: Got it.
B-A-N-A.
Your Honor, Im Karen Slyapich.
work for Bank of America as their representative. THE COURT: How do you spell your last name, maam? S-l-y-a-p, as in Peter, -i-c-h.
MS. SLYAPICH: THE COURT:
C-h? Uh-huh. Thank you.
MS. SLYAPICH: THE COURT:
All right.
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And we have on the other side of the room? MS. MAINES: My name is Marsha Maines. I was the
Debtor in the Chapter 13 case last year. THE COURT: All right. Thank you.
And the other observers are? MR. SHADWELL: THE COURT: Im Dan. Im with Marsha.
Dan?
Do you have a last name?
MR. SHADWELL: THE COURT:
Shadwell, maam.
C-h-a-d-w -S-h-a, Shadwell. Thank you. And in the back?
MR. SHADWELL: THE COURT:
All right.
MS. HOLLADAY-TOBIAS:
And on my side, this is David
Henderson, a paralegal from McGuire Woods, my firm. THE COURT: All right. All right. Thank you.
Were scheduled for trial today on the
Debtors motion for an injunction, contempt and sanctions. Theres also another motion for contempt, a separate motion for injunction. And then theres a motion to strip the unsecured
non-priority claim lien and motion for summary judgment and for contempt and sanctions against Samuel I. White, PC. I dont know who that is. Is that a law firm in Virginia? MS. HOLLADAY-TOBIAS: Yes, maam. And my Who is Samuel I. White,
understanding is they werent actually served with the pleadings in this case, or the sanction motion. Theyre the
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local foreclosure counsel. THE COURT: Lets check that first, because thats
something that is a threshold issue, and if theres no service, we would have to re-notice them. All right. Thats Document Number 152.
It looks like Ms. Maines served Jon
Waage, the United States of America, Countrywide and/or Bank of America, and BAC, United States Trustee, the Attorney General, it looks like Melissa Youngman. MS. HOLLADAY-TOBIAS: -- lets see -THE COURT: Marshall Watson. Marshall Watson were both prior They were -Melissa Youngman, and also the
counsel for BANA in the bankruptcy proceedings. they substituted in for McCalla Raymer. THE COURT: Okay.
Samuel I. White, PC, hasnt been
served, Ms. Maines, so youre going to have to file a certificate of service and -MS. MAINES: THE COURT: Are you referring only to Document 152? Yes. That requests sanctions against
Samuel I. White, PC, and Samuel I. White, PC, was not served. So well have to have you file -- what I can do is I can strike it due to non-service, and then you can refile it with good service. MS. MAINES: THE COURT: Thats only in reference to Doc. 152. Thats all Im talking about now is 152.
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Im going to enter an order striking it without prejudice to your refiling it and serving it. on lack of good service. Okay. for trial. That leaves the three other contested matters But its being stricken based
Are you ready to go forward, Ms. Maines? MS. MAINES: THE COURT: Yes. All right. Before you do, Im mindful of
the fact that Bank of America has filed an objection to your exhibits, claiming that they have not seen them and therefore have not been able to prepare adequately a defense if you are using those in your trial. What Im prepared to do is see how they come in and inquire of counsel as to whether or not Bank of America is prejudiced by the late disclosure of these documents. theres no prejudice, then well let you use them. prejudice, we wont. With respect to the objection concerning incomplete copies, I think Ill wait and see what it is youre going to try to introduce into evidence to see whether an excerpt is appropriate for my consideration or not. So, are you ready to proceed? You said you were. Do And if
If there is
you want to make a brief opening statement about what you intend to prove today? MS. MAINES: Yes, Your Honor. The only document I
submitted with the Court as an exhibit is the deadline and
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hearing template thats found on the Courts own website.
It
lists all of the deadlines and hearings that were part of the case when I filed bankruptcy in Chapter 13 last year. THE COURT: MS. MAINES: THE COURT: an exhibit tag? MS. MAINES: with the clerk. THE COURT: MS. MAINES: THE COURT: in front of the judge. Okay. Well, I need it up here. Yes, maam. And I filed it downstairs So what youre saying is your docket. Correct. Okay. Have you already marked that with
Pardon me? Normally you introduce evidence at trial Let me see if we can find it. Its on the docket.
COURTROOM DEPUTY: THE COURT:
Pardon me? Its on the docket. Someones already scanned it in.
COURTROOM DEPUTY: THE COURT: All right. Okay.
What this is is a report; it is generated by our It does indicate when hearings were and when Im printing off a copy.
CM/ECF system. deadlines were.
Do you have a copy? MS. HOLLADAY-TOBIAS: THE COURT: Yes, I do, Your Honor.
Okay, Miss Garcia, her cover sheet
includes a checkmark indicating that Ive already accepted this in evidence, and I havent. So I am going to wipe that out.
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You can use this as your exhibit grid.
Heres your cover
sheet, and here is the -- it looks like theres more than just the template. MS. MAINES: The deadlines and hearings page. Thats
a copy -- the Debtors objection to the original Promissory Note is what was faxed according to the Courts order, Document 178. THE COURT: Wait a minute. Hold on. Okay. You have
commingled things in one entry on the docket; okay? separate them for you.
So let me
Within your docket entry you have your
exhibit cover sheet, your exhibit grid, and then a copy of the Courts report from CM/ECF. MS. MAINES: THE COURT: Thats your exhibit; right?
Yes, maam. Okay. Now, also within that same filing,
you have filed an objection to using the original Promissory Note as an exhibit. MS. MAINES: THE COURT: MS. MAINES: Right. Okay. Because the Courts order -Let me --
-- said it had to be faxed -- we both
had to fax to each other what we intended to present as -THE COURT: MS. MAINES: THE COURT: MS. MAINES: How far does this go? Two pages. Just two pages. Im sorry, four pages. Its the twoDoes it go --
page Debtors objection, a copy of the fax transmissions
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showing the date and time that it was actually submitted to the other party. THE COURT: MS. MAINES: Uh-huh. And then also showing that I attempted
to send it to the Court, but the Court -- all email addresses that I had for the Court, since there was no fax number for the Court -THE COURT: MS. MAINES: THE COURT: four pages? Well, we dont take things by fax. I understand. I understand that.
So the last three pages -- wait, the last
Whats the bonding of judicial consequence? Thats mine. That should not have
MS. MAINES: gone -THE COURT: MS. MAINES: supposed to be -THE COURT: that away.
Its in the docket entry. That should be stricken. Thats not
Well, Ill tell you what, Ill just throw
Now, theres pages that start with Gmail, and then
a page that says -MS. MAINES: All that is -- all the Gmail stuff is is
the -- the two pages of Gmail -- three pages of Gmail just shows that I tried to send a copy to the Court -THE COURT: MS. MAINES: THE COURT: Okay. -- via email. Okay.
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MS. MAINES:
All this is is the attempting to show
that I complied with the Courts order. THE COURT: MS. MAINES: show them my exhibits. Okay. The Courts order was: I did that. Serve by fax,
I just put it on the
record that I followed the Courts order. THE COURT: three pages of emails. Okay. So Im going to throw away the
Im going to keep the four pages of
Debtors objection to the original Promissory Note. MS. HOLLADAY-TOBIAS: three pages. THE COURT: Well, Ive got a typewritten page, And, Your Honor, I only have
another typewritten page, Ive got transmission verification report, and then Ive got a fax cover sheet from the UPS Store addressed apparently to you. MS. HOLLADAY-TOBIAS: transmission. Thats fine. Okay. The fax transmission indicates Okay. Im just missing the fax
THE COURT:
three pages went through okay to (904)360-6317. MS. HOLLADAY-TOBIAS: THE COURT: Okay. And I did receive it.
So, let me give to Ms. Garcia what Ill
she needs, which is the exhibit and the exhibit grid.
keep the objection to the Promissory Note until it becomes relevant. Okay. Now you can make your opening statement. What
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is it that you intend to prove to demonstrate to me that I need to enjoin Bank of America and make a finding of contempt and make a finding that -- what sanctions are reasonable? MS. MAINES: Well, Judge, Im sure you remember last
year when I came to your Court seeking relief for bankruptcy. There were very few assets involved; it was a very simple, cutand-dry case. I did it entirely pro se. And you afforded me
every opportunity.
You even stated for the court you afforded
me every opportunity possible because I was pro se and not practiced in the law and that sort of thing. So what I have done is -- I had filed a Bankruptcy Petition. Before I even made it to the confirmation hearing,
there were certain hearings that were held, and it was ruled that Bank of America and BAC Home Loans Funding and BAC -every other form of Bank of America, Bank of America Servicing, all the different names that they use, you issued an order sustaining my objection to their claim. And their claim was that they had -- that under authority of a note and a Deed of Trust that I had executed back in 2005, that they had a valid claim before this Court. And I objected to that claim and filed a motion to compel for them to produce evidence that they were a valid -- that they held a valid claim. The record was established that they failed to appear at every single hearing. They failed to appear at creditors
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hearings.
So each -- but they did have one attorney.
There
were so many attorneys -- I apologize for rambling, but theyve had -- theres been so many different attorneys that claim to represent Bank of America or some form of Bank of America, its like running a marathon with way too many hurdles for any individual to keep up with. THE COURT: your closing argument. Thats stuff that you can argue to me in Thats argument. You were going to
state to me in plain, concise terms what grounds you are going to prove to me that would lead me to consider your request to, Number 1, enjoin Bank of America from doing -- from proceeding under that note and Deed of Trust; Number 2, that I should find Bank of America in contempt; and Number 3, impose sanctions. So withhold the animus and the consternation, just tell me what you will prove either by your testimony or documentary evidence to suggest that I could do those things. MS. MAINES: THE COURT: Under Elliott et al v. -Thats argument; okay? Thats argument.
What evidence are you going to adduce during the trial? MS. MAINES: THE COURT: MS. MAINES: The record as established. And the record does what? The record as established shows that a
fraud was committed upon this Court. THE COURT: MS. MAINES: In what form? In the form of filing documents claiming
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to have been recorded upon the land records of Frederick County, Virginia, that did not exist at the time this Court had full jurisdiction and still to this date currently do not exist on the land records of Frederick County, Virginia. THE COURT: Okay. And that, youre saying,
associated with the proof of claim -- is there a proof of claim filed? MS. MAINES: THE COURT: MS. MAINES: THE COURT: MS. MAINES: There was a proof of claim filed. Okay. You objected and I sustained.
Correct. Okay. So I have a disallowed claim. You
You have a disallowed claim.
allowed it as an unsecured, non-priority claim.
That order was
recorded on the land records of Frederick County, Virginia, and all parties were noticed, including Bank of America. And in
response to receiving service of that court order by me, they initiated foreclosure actions through their counsel, Samuel I. White. THE COURT: Okay. So youre basically saying that
because the claim -- the secured claim has been disallowed, I should prevent further proceedings on the Deed of Trust, I should hold Bank of America in contempt for proceeding on a secured claim when all I allowed was an unsecured claim. And
you want me to sanction them for violating my court order, or for not complying --
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MS. MAINES: THE COURT:
Violating your court order. Okay. So its not that theres a
violation of the stay or a discharge injunction, because that discharge never occurred in this case. MS. MAINES: THE COURT: MS. MAINES: Correct. So it was simply a matter of -The sole matter before the Court is this
Court had full jurisdiction to issue the order when it issued the order. to. The order was never appealed; it was not objected
And the case was closed in January, but actions were taken
before the case was even closed from this Court, and they were taken in direct contempt of this Courts order. THE COURT: comply with an order. MS. MAINES: THE COURT: Yes, maam. All right. Anything else you are going Okay. So its basically failure to
to adduce in the testimony or the exhibits? MS. MAINES: Well, as the record was established
while I was in bankruptcy, and I have the originals here today as well, I own the original Deed to my house. It was obtained And
from my divorce settlement in 2006 from a court of equity. not only -THE COURT: Did the court of equity disallow the
lien, or did they just transfer title? MS. MAINES: The Trustee, Samuel I. White, on the
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Deed of Trust, released the Deed back to my possession as part of a divorce settlement. Had Bank of America, or any of their
alleged representatives or subsidiaries or whatever, ever bothered the check the land records, they would have seen that they had already released my Deed back to me. THE COURT: MS. MAINES: Okay. So thats --
All they ever had was marketable title.
They never had legal title to ever act. THE COURT: MS. MAINES: THE COURT: Okay. No. Okay. All right, have a seat. Anything else?
Ms. Tobias-Holladay (sic), you may make your opening statement. What is it that you intend to prove to rebut the
assertion that Bank of America didnt comply with my order disallowing the secured claim -MS. HOLLADAY-TOBIAS: THE COURT: Thank you, Your Honor.
-- and also that the Deed has been
released to the Debtor? MS. HOLLADAY-TOBIAS: things. What we will offer, several
The first is going to be based on the docket itself, The fact that
the events that occurred during the bankruptcy:
there was no discharge in a confirmation of the Plan, and the bankruptcy was dismissed. We will be able to show we have the original Promissory Note that we will proffer into evidence. This
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Promissory Note has never been cancelled.
The Deed of Trust,
the mortgage on the property, we will be able to show is still of record, has never been satisfied, although title, as Ms. Maines has alluded to, may have transferred from her and her ex-husband to just Ms. Maines solely. A lot of -- I dont know that there is much -- beyond the record and beyond the existence of the lien, whether Bank of America was entitled to proceed with foreclosure after the dismissal is largely legal argument, which I will not go into at the moment. I have Karen Slyapich here with me who will be able to testify as to the banks actions post-dismissal and the foreclosure, if needed, depending on what Ms. Maines decides to -THE COURT: of counsel? MS. HOLLADAY-TOBIAS: THE COURT: of counsel? MS. HOLLADAY-TOBIAS: THE COURT: All right. No, maam. And thats it? Thats it, Your Honor. Im sorry? Is part of your case going to be advice
Is part of your case going to be advice
MS. HOLLADAY-TOBIAS: THE COURT: Okay.
And what exhibits do you have? I have the original Promissory
MS. HOLLADAY-TOBIAS: Note here with me.
It wasnt faxed, obviously, because its
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the original, and Ms. Maines does have a copy, in fact its included in some of her exhibits. I have -- most of the other
stuff that I will proffer into evidence are exhibits of copies of pleadings from the docket itself, including a copy of the docket. THE COURT: in Virginia? MS. HOLLADAY-TOBIAS: Ms. Maines does have an How about any abstracts of title records
abstract of title records in Virginia included in her exhibits that -THE COURT: Well, her exhibit just is one. She forwarded us some
additional exhibits via email, and we indicated to her that we would potentially use some of her exhibits as included in our exhibit list, so we do have copies of that. THE COURT: And does the abstract show that the Deed
of Trust was or was not recorded? MS. HOLLADAY-TOBIAS: It shows that the Deed of Trust
was recorded, and it further shows theres no satisfaction of record. THE COURT: And let me ask you, although Ms. Maines What is the effect of
may tell me near the end of her case:
returning a Deed of Trust to a borrower? MS. HOLLADAY-TOBIAS: not returned. The Deed of Trust was actually
What was returned was the title document, the
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Deed itself.
The Deed of Trust, I actually have an original
copy here with me, so that was not returned to Ms. Maines. THE COURT: Okay. So youre talking about the
original Deed from whoever owned the property before Ms. Maines and her husband? MS. HOLLADAY-TOBIAS: THE COURT: All right. Correct. Okay.
Are you ready to proceed, Ms. Maines? MS. MAINES: THE COURT: Thats a tough question. You know, I gave you all the opportunity All I know
to settle, and I dont want to hear what happened.
is that apparently no settlement was struck between the two parties. MS. MAINES: Well, thats part of the argument. Bank of America
Theyve never been a party in interest, so.
has no clue who I -- had no idea who I was until I applied for a bankruptcy. So the administrative -- the APA, the
administrative rules that I used, you know, when I started getting documents in the mail from Bank of America, that was resolved. THE COURT: Can I ask you a question? I did allow an
unsecured claim, which means I found that Bank of America held a claim. MS. MAINES: It had an unsecured claim. And if they
do indeed have the original note, it must be the one from 2008
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from the note modification and it must be signed by both parties. And theres nothing wrong with a promise to pay. I signed a promise to
Ive never stated that I failed to pay.
pay; its a unilateral agreement utilizing my Deed as collateral. And I have my Deed back. Its almost as if
theyre saying -THE COURT: No, you have the Deed to your house back;
you dont have the Deed of Trust back. MS. MAINES: evidence of a debt. THE COURT: Well, maam, I dont want to argue with Well, the Deed of Trust is merely
you, but it really is like a mortgage. MS. MAINES: THE COURT: and your testimony. No, its not, not at all. Well -- okay, go ahead with your evidence Youre now contending that Bank of America
does not hold a secured claim because they couldnt prove something. So prove to me the -- show me what it is -- why it
is that you contend that Bank of America holds apparently no claim. MS. MAINES: Well, Bank of America is not Countrywide
Home Loans, Incorporated, whom I signed the agreement with. When I signed my promise to pay, it was to Countrywide. THE COURT: with that note? MS. MAINES: No, I dont. And I -Okay. And you have no idea what happened
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THE COURT:
Have you had an opportunity to inspect
the original in the hands of -MS. MAINES: THE COURT: MS. MAINES: No, I have not. Ever? No, I have not. Every single attempt
Ive made to inspect the original has been denied. THE COURT: MS. MAINES: THE COURT: Why is that? the original? MS. HOLLADAY-TOBIAS: literally just got this morning. took awhile to get to me. The original I actually, It was up in Virginia. It Okay. Why --
Even during mediation -All right. Stop right there.
Why has she not been able to inspect
I intended to have it for the
mediation for her to inspect and then attempted to get it afterwards. Virginia. I have it here if she would like to inspect it. THE COURT: Yes. Well take a 15-minute break until But as I said, it was with local counsel up in
(Recess held from 2:12 p.m. to 2:19 p.m.) THE COURT: Were back on the record.
Ms. Maines, youve had an opportunity to examine the purported original note. MS. MAINES: You have done so; correct?
Yes, I have.
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THE COURT: Ms. Tobias-Holladay? MS. MAINES: THE COURT:
Have you returned that original back to
Yes, I have. All right. So, now, you object to --
well, well wait until we see what the Bank of America does with that thing. Okay. So are you ready to go forward and -- are you
going to testify, or what are you going to do? MS. MAINES: Your Honor, I really dont have anything
else to offer this Court other than the record as established while the case was active. Really, the only matter before the Court is a contempt charge that the Court, with proper jurisdiction, held hearings, provided proper notice, provided proper opportunity to be heard for whomever was interested while the case was going. is done. And an order was issued granting relief, and the case It was not appealed. Theres no reason to re-litigate or re-introduce or redo the case. THE COURT: Maam, do you know what the effect is of
Section 349 of the Bankruptcy Code on a dismissed case? MS. MAINES: THE COURT: Yes. All right. Well wait until your closing
argument for you to talk more about that. All right. So you want me to take -- you want me to
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take judicial notice of the docket in your case, of the record that was made regarding the objection to the claim, the order on the claim, and I will do that. MS. MAINES: THE COURT: Thank you. And then what, with respect to the Deed Theres no paper
that was released to you by Samuel I. White?
I have, no exhibit, no testimony; just your argument. MS. MAINES: Actually, it was submitted to the Court.
It is a part of the record. THE COURT: everything. Well, I cant take judicial notice of
I cant take judicial notice of, for example,
hearsay that you put into the record unless you can argue an exception to the hearsay rule or argue that its not hearsay by operation of the Federal Rules of Evidence. Im taking into -- Im taking judicial notice of the fact of the hearings, the deadlines, the content of your objection, my order sustaining your objection. And I believe
that its undisputed that Bank of America thereafter pursued some sort of a foreclosure proceeding in the state of Virginia, so I dont know that you need to show me any paper on that. Am I correct, Ms. Holladay-Tobias, that there is no dispute but that Bank of America went forward in the foreclosure after the bankruptcy was dismissed? MS. HOLLADAY-TOBIAS: THE COURT: Okay. Thats correct.
You dont have to prove that part
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of it.
With respect -MS. MAINES: THE COURT: MS. MAINES: THE COURT: And thats referred to in Document 165. 165? Yes, maam. Okay. Let me look at that.
Miss Garcia, youve got the exhibit registry there. Indicate that as Exhibit 2 she wants me to take judicial notice of Docket Number 165. I dont see the Deed there. MS. MAINES: No, Im sorry; Document 165 is the It
statement -- supplemental statement in support of contempt.
just shows where Bank of America and I came to an agreement on certain issues regarding -THE COURT: to prove your case. Okay. Well, maam, youre going to have
If youre going to now prove an agreement,
youve got to have a copy of the agreement, youve got to authenticate it -- take the stand and then authenticate it, and then ask me to take it into evidence. So far, and Ill ask Ms. Holladay-Tobias, do you object to my taking judicial notice of the fact of the deadlines, the hearings, the content of the objection to the claim, my order sustaining the objection to the claim? MS. HOLLADAY-TOBIAS: THE COURT: of that. Okay. I have no objection to that.
Im taking judicial notice of all
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So just for purposes of your exhibit grid, Miss Garcia, put Exhibit 1 is admitted into evidence. (Debtors Exhibit 1 is marked for identification and admitted into evidence.) THE COURT: you going to testify? seen this on TV. judge: All right. What other exhibits? And are
A trial is where you actually -- youve
Nobody ever gets in the stand and tells the
Judge, look at what I filed three weeks ago or three Just like on TV. Actually, I dont have cable, Im sorry. Well, a lot of these things were not on
months ago.
You know, Law and Order and L.A. Law, and Judge Judy. Have you never -- Perry Mason?
I mean, theres some things.
Youve never seen a trial on TV? MS. MAINES: The most experience I have as far as
trials pretty much has been in this courtroom and as a court watcher in my family court matters in Virginia. not my thing. THE COURT: MS. MAINES: THE COURT: Okay. Well -No, I -- its
It scares me to death, quite frankly. Well, you shouldnt be scared to death.
But youve never seen one on TV? MS. MAINES: THE COURT: I have seen -Okay. Well, it goes just like that. You
have to get on the stand, and whatever you want to tell me
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under oath that is a fact that proves your claims here, then you tell me that. If theres a document that you want me to
take into evidence, youve got to provide me a copy of the document, provide opposing counsel a copy of the document, authenticate it, and then tell me why its relevant. So what is it within Number 165 that you believe is relevant and is admissible and that you would like to authenticate after you take the stand? like this is just more argument. Because it looks to me
Legal argument is where you
link up the facts that you prove to the law that establishes that those facts would constitute a violation of some sort. So you load up the record with your facts, and then you argue the effect of those facts is that they constitute a violation of some sort. MS. MAINES: The only testimony I would be able to
offer is that the record is what it is. THE COURT: Okay. So basically youre just going to
ride on the fact that there was an order disallowing the secured claim and allowing the unsecured claim. MS. MAINES: Yes, and that this Court had full
authority to issue that order after -THE COURT: MS. MAINES: THE COURT: No question about it. -- reviewing the facts -No question about it. All right. And so
youre not going to offer into evidence anything about a Deed
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that was released to you?
You argued in your opening statement
that you were going to prove that Samuel I. White released the Deed, which I presume to be the Deed of Trust. MS. MAINES: I can offer into evidence the original
Deed that was prepared by my ex-husbands lawyer during the divorce settlement. THE COURT: And that was a Deed? All right. Go
ahead and -- you have the original, or you have a copy? MS. MAINES: THE COURT: Tobias. MS. MAINES: I have a Certificate of Acknowledgment That was included in The original. All right. Show it to Ms. Holladay-
that goes with it that was also recorded. the email that I sent to her. THE COURT:
Do you have any objection to my making a
copy of that and introducing the copy as her exhibit for identification and then I would return the original to her? MS. HOLLADAY-TOBIAS: THE COURT: Okay. No, Your Honor. Are you going to offer
All right.
that into evidence, then, Ms. Maines? MS. MAINES: THE COURT: Yes, maam. Do you have any objection Ms. Tobias-
Holladay -- I mean, Holladay-Tobias? MS. HOLLADAY-TOBIAS: THE COURT: No objection.
All right, then, what well do is Im
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going to have Miss Garcia make a copy of your original. will be Exhibit 2 for identification. Number 165, Miss Garcia. be the copy of the Deed.
That
Strike that Document
So Exhibit 2 for identification will And without objection, that is
entered and accepted into evidence. (Debtors Exhibit 2 is marked for identification and admitted into evidence) THE COURT: So if youll walk that back to Miss
Garcia, shell go back and, at the appropriate time, make a copy. Let me review it before she does so. MS. MAINES: In addition to the Deed, I also have the
Certificate of Acknowledgment that was recorded on the land records in reference to that Deed. THE COURT: Okay. Well mark the Certificate of Shes offering
Acknowledgment as Exhibit 3 for identification. that into evidence. Thats a copy; right? MS. MAINES: THE COURT: MS. MAINES: clerk. MS. HOLLADAY-TOBIAS: THE COURT: Okay. No, these are originals. Thats the original, too?
They have the seal from the court --
I have no objection.
We will likewise make a copy of
that original, and we will mark the copy as Exhibit 3 for identification.
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Shes offered it into evidence.
You have no
objection, Ms. Holladay-Tobias, so Exhibit 3 will be in evidence. (Debtors Exhibit 3 is marked for identification and admitted into evidence.) THE COURT: Would you walk that forward, please.
And let me review it first, Miss Garcia, before you make a copy. All right. Here you go, Miss Garcia.
MS. MAINES:
I also have the raised-seal recorded
copy of the order from this Court sustaining the objection to bank of claim (sic). THE COURT: notice of that. You wont need that. Ive taken judicial
Thats okay. I also have an original order from the
MS. MAINES:
Circuit Court of Frederick County in reference to a non-suit against Samuel I. White, PC, for his foreclosure action he took against me. THE COURT: All right. So what is that? Youre
saying that Samuel I. White, PC, on account of its client dismissed a case that had been pending against you? MS. MAINES: I had initiated action against him in
the state court when he attempted to foreclose, and then I nonsuited it. THE COURT: Whats that relevant to in terms of the
facts that you intend to prove today?
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MS. MAINES:
He had full proper notice that this
Court had already issued an order and that it was recorded on the land records sustaining Bank of Americas claim. THE COURT: All right. So youre saying that a
lawsuit filed by you proves that he had notice? MS. MAINES: THE COURT: MS. MAINES: THE COURT: MS. MAINES: Yes. Do you have proof of service? I have the courts order non-suiting it. What does that mean non-suit? In the state of Virginia, when you file
a declaratory judgment against a party, you have the opportunity to withdraw that and basically non-suit it if you, within 21 days of filing it, determine that youre not prepared to take -- to move the court to take an action against that party. THE COURT: MS. MAINES: THE COURT: MS. MAINES: Okay. I did. So you chose not to pursue? I chose not to pursue Sam White in the Well, who non-suited it in --
state court because I realized that until this matter was resolved with Bank of America, his actions in violation of multiple other codes, like the fair credit lending act, the debt collections act, the torts of emotional distress, all of those other issues that were raised at out hearing in July, that those are matters that are -- to be taken up directly with
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him.
They dont belong to Bank of America. He may have acted under Bank of Americas name and
claimed or presumed authority, but the issues with him are with him alone. The fact that he took them in Bank of Americas
name is between him and Bank of America, not me. THE COURT: Well, what is it -- what is his knowledge
of this bankruptcy case intended to prove? MS. MAINES: THE COURT: MS. MAINES: THE COURT: Hes had full notice and proper notice. Hes not on trial today -No. -- because he hasnt been served, so what
does this add to your case against Bank of America? MS. MAINES: It shows that he did have notice that
there was no claim, that -THE COURT: MS. MAINES: show. Because you say so? No, because thats what the land records
And state code requires that he review the record prior Its an
to taking any legal action against the party. administrative foreclosure state. THE COURT:
Let me turn to Ms. Holladay-Tobias.
Is
there any dispute but that Samuel I., PC (sic), had knowledge of my order disallowing the claim? MS. HOLLADAY-TOBIAS: No, Your Honor, we dont
dispute that Samuel I. White had notice of the bankruptcy order itself.
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THE COURT: stipulated to.
Okay.
All right.
Well, then, thats
You wont need to put in the piece of paper you
were just talking about. All right. MS. MAINES: What else? Thats all Im going to submit. I have
a plethora of other things I feel I could submit; I dont think its necessary. THE COURT: MS. MAINES: THE COURT: Okay. All right. So youre resting?
I rest. Okay. All right, have a seat.
Ms. Holladay-Tobias -MS. HOLLADAY-TOBIAS: THE COURT: Yes, Your Honor. She has
-- the burden shifts to you.
proved to my satisfaction that I had entered an order that disallowed the claim in part and allowed it in part on the merits based on her assertion that the lender did not have proof of holding a lien; that it is undisputed that the lawyer up in Virginia knew about that order; and its undisputed that notwithstanding that, he, representing Bank of America, went forward with a foreclosure proceeding based on a lien -- Im going to use my terms because Im familiar with them. Yes, it
was a Deed of Trust, but based on a Deed of Trust that I had determined, based on the merits of the objection, was not held by Bank of America. her showing. So now you need to go forward and rebut
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Yes, Your Honor.
I would
actually like the Court -- I request judicial notice of certain docket entries, and I can provide the Court copies. THE COURT: Sure. You dont need to do that. What
docket numbers are they? MS. HOLLADAY-TOBIAS: It will be Docket Numbers 115,
which is the motion for reconsideration filed by Bank of America of the order sustaining the objection to Bank of Americas claim, which was filed on August 27, 2010. THE COURT: Has that ever been heard? No, Your Honor, it has not.
MS. HOLLADAY-TOBIAS: MS. MAINES: THE COURT:
It was objected to. Okay. But we havent had a hearing on
No, Your Honor, there was no
Also Docket Entry 111, which is the motion filed to dismiss the case for failure to make Plan payments by the bankruptcy trustee, which was filed on August 20th, 2010. THE COURT: reconsideration? MS. HOLLADAY-TOBIAS: Correct. Of note, the motion And that comes before the motion for
filed by the trustee to dismiss was entered -- or was filed the same day the Court entered the order reclassifying the banks claim to a general unsecured claim on August 20th, 2010, which
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appears in two places, at Docket Entry 110 and Docket Entry 112, of which the Court has already taken judicial notice. I would also like the Court to take judicial notice of Docket Entry 123, which is the motion to dismiss filed by Ms. Maines for inability to make payments -- Plan payments. THE COURT: Thats on September the 8th. Correct; filed on September the
8th, which is the same day she filed Docket Entries 118, 119, 120 and 121, which were essentially all oppositions to the banks motion for reconsideration of the order sustaining objection to Bank of Americas claim. motions but in substance the same. 121. And then we request the Court take judicial notice of Docket Entry 124, which is the order dismissing the bankruptcy case on September 20th, 2010. And then Docket Entry 126, which They were different
Thats 118, 119, 120 and
is the trustees final report and account, which was filed on November 17th, 2010, indicating -THE COURT: What does Number 126 add to anything? It indicates that the Plan was
MS. HOLLADAY-TOBIAS: not confirmed. THE COURT: All right.
Bank of America would also like
to enter into evidence the original Promissory Note, which is self-authenticating under the UCC provisions. And I have
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copies of the original note for the Court and all parties, and Ill hand the Court the original. THE COURT: statute. MS. HOLLADAY-TOBIAS: MS. MAINES: THE COURT: It is -Cite for me the self-authentication
I object to that being submitted. Well, let me -- I want to hear what her
basis is first so that you can then know what her basis is and then make an informed objection. MS. HOLLADAY-TOBIAS: Its found in Florida Statutes,
Chapter 673, and Im looking for the specific provision of statute. Alternatively, I have Ms. Slyapich here who can
testify as to the authenticity of the note. THE COURT: ground. Well, Im just not familiar with the UCC
I was hoping you were going to cite me to something in
the Federal Rules of Evidence. MS. HOLLADAY-TOBIAS: statute. MS. MAINES: THE COURT: Which doesnt apply. Was it a note that was made in Florida? This is a note that was signed Its actually a Florida
MS. HOLLADAY-TOBIAS: in Virginia.
Virginia and Florida have both adopted the And I
Uniform Commercial Code for self-authenticating notes.
apologize to the Court, I do not have that section immediately handy.
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MS. MAINES:
I have a copy of the UCCs from Virginia
if you would like those. THE COURT: MS. MAINES: Do you have Article 3? I have -- in the Code of Virginia, Title
8.4(a) Commercial Code regarding funds transfers, and it talks about presentment and demands. THE COURT: Were not talking about that here. Were
talking about authentication of an original note, meaning it purports to be what it is. I mean, it is -- excuse me, its
the opposite -- it is what it purports to be. MS. MAINES: I do not have a copy of the Federal
THE COURT: MS. MAINES: Virginia as well. THE COURT: Federal UCC.
No. -- but I know the Federal UCC adopted
We dont have a Federal UCC.
There is no
Now, the Rules of Evidence, in its authentication rule, Number 902, it says self-authentication is not required with respect to a whole litany of items. MS. HOLLADAY-TOBIAS: negotiable instruments. THE COURT: Documents acknowledged (sic) by a I believe one of those are
certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to
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take acknowledgments; thats Subsection (8). is, Commercial paper and related documents.
Subsection (9) Commercial paper,
signatures thereon, and documents relating thereto to the extent provided by general commercial law. you were trying to cite to me something else? MS. HOLLADAY-TOBIAS: THE COURT: Correct. And thats where
Supplement -I was attempting to cite to the
UCC of which I thought I had a copy and I dont appear to have it with me. THE COURT: Well, you can certainly call your Go
custodian to the stand and you can also call Ms. Maines. ahead and authenticate it. Let me ask this:
Ms. Maines, really, do you have any
-- do you have any argument that that note is not authentic? MS. MAINES: I do not have any argument or objection.
Its an authentic note that was executed back in 2005. THE COURT: by stipulation. know. Okay. Authenticity, then, is established
So what you will do with that now, I dont
Do you want to offer it into evidence? MS. HOLLADAY-TOBIAS: THE COURT: All right. Yes, Your Honor. Do you have an objection to
-- wheres your exhibit -- oh, youve -MS. HOLLADAY-TOBIAS: was going to present. I wasnt sure what Ms. Maines
We were going to mark it as we went
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along. THE COURT: Okay. Ive got here what is stipulated
to be an authentic note.
Now Bank of America -- well mark Exhibit? Exhibit 1.
this as Bank of America what? MS. HOLLADAY-TOBIAS: THE COURT: MS. MAINES: THE COURT: MS. MAINES: THE COURT: MS. MAINES:
1 for identification. And I object to it being admitted. And you object? Yes, maam. Okay. Whats your basis?
It violates Virginia Code in that it has
a blank endorsement on page 2. THE COURT: Virginia -MS. MAINES: THE COURT: MS. MAINES: It would be under Title 55. Pardon me? It would be under Title 55. It was What statute are you talking about under
submitted to this Court when we had a hearing on the motion to compel. THE COURT: MS. MAINES: Where is that? Doc. 45. Like I said --
That document was not
submitted when this Court had jurisdiction to actually view it. It just appeared yesterday. THE COURT: statute is. Okay. Let me look and see where the
Youre pointing me to Docket Number 45?
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MS. MAINES:
I apologize.
Doc. 45 was the motion to
THE COURT: MS. MAINES: THE COURT: MS. MAINES: THE COURT:
Right. We had hearing on it. Right. It was not produced at that hearing. No. You just cited me a law that says
MS. MAINES:
Oh, Im sorry.
Title 55 of the Virginia
THE COURT:
Right.
Where is -- do you have a copy?
Youre arguing that there is some law that says that this note is unenforceable if there is an endorsement that is -MS. MAINES: Not that it is unenforceable, but as a
negotiable instrument under the UCC, the endorsement cannot be in blank. Its just like giving a blank check to someone. THE COURT: No, its not like giving a blank check to
Its like giving a check thats been signed to This is a note thats been signed. Right. To whom? And
someone else.
It has been signed to Countrywide.
then, according the law as I know it, as long as the original is possessed by someone, it need not be specifically endorsed. And this lady here has this Note. MS. MAINES: Yes, she does. And shes not
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Countrywide. THE COURT: Okay. Well -- okay, thats fair. Youre
objecting because youre saying its not relevant to Bank of Americas claim because Bank of America appears nowhere in here. Is that what youre saying? MS. MAINES: THE COURT: MS. MAINES: Correct. Okay. And had Bank of America been the proper
party to -- as a holder of the note, they would have appeared at the hearing under the motion to compel to produce it showing that it had been endorsed to them. THE COURT: Im overruling your objection because the
state of the law as I know it, even if a note is not specifically endorsed to an assignee, the owner and possessor of it has standing and owns the rights to the note. So, Miss Garcia, youre going to have to make a copy of this original. Mark that as Bank of America Exhibit 1 for
identification, which I am admitting into evidence. (Bank of Americas Exhibit 1 is marked for identification and admitted into evidence.) MS. HOLLADAY-TOBIAS: And, Your Honor, Ive actually
provided, along with the original copies -THE COURT: Okay. -- so the Court does not need
MS. HOLLADAY-TOBIAS: to copy it.
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THE COURT:
All right.
So, what else do you want to
enter into evidence, or what testimony do you want to elicit? MS. HOLLADAY-TOBIAS: call Karen Slyapich -THE COURT: All right. -- Bank of America. Go ahead and take the stand, After that, At this time I would like to
MS. HOLLADAY-TOBIAS: THE COURT: All right.
Ms. Slyapich, and Miss Garcia will swear you in.
Miss Garcia will return the original note to Ms. HolladayTobias. COURTROOM DEPUTY: Raise you right hand. Do you
solemnly swear that the testimony you are about to give will be the whole truth and nothing but the truth so help you God? MS. SLYAPICH: I do. KAREN SLYAPICH having first been duly sworn by the courtroom deputy, was examined and testified as follows: DIRECT EXAMINATION BY MS. HOLLADAY-TOBIAS: Q A Q A Can you please state your full name for the record. Karen Jean Slyapich. And where are you employed, Ms. Slyapich? Im employed by Bank of America in Simi Valley,
California. (The court reporter asks the witness to speak louder.)
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THE COURT:
Give us a test.
Is that on?
(The witnesss microphone is turned on.) THE COURT: THE WITNESS: BY MS. HOLLADAY-TOBIAS: Q A Q A Q A Q You could repeat your name for the record. Karen Jean Slyapich. And where are you currently employed, Ms. Slyapich? Bank of America located in Simi Valley, California. What is your title or position with Bank of America? I am a Bankruptcy Specialist Litigator Level 2. In your capacity as a bankruptcy specialist litigator Try again. Hello?
number 2, are you familiar with the loan that we are here today to discuss? A Q A Q Yes, I am. And that would be the loan to Ms. Marsha Maines? Yes. In your capacity as a litigation specialist with Bank of
America, are you also familiar with corporate transfers -A Q A Q A Q Yes. -- and successor companies? Yes. Are you familiar with Countrywide Home Loans, Inc.? I am. From your experience as a bankruptcy litigation
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specialist, are you familiar with who currently owns Countrywide Home Loans, Inc.; what entity? A There is a tree, but the actual parent of Countywide Home
Loans, Inc., is Bank of America. Q A Q Bank of America, National Association? Yes, maam. In your capacity as a bankruptcy specialist for Bank of
America, are you also familiar with the entity known as Countrywide Home Loan Servicing, LP? A Q Yes, I am. Is Countrywide Home Loan Servicing, LP, currently in
existence? A No longer. In 2009, the name changed to BAC Home Loan
Servicing, LP; and in July of this year, 2011, that was merged into Bank of America, N.A. THE COURT: for this loan? THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS: Bank of America, maam. Its the owner and the servicer? Yes, maam. Its just the owner. We are the servicer. This is a Freddie Does that mean that theres no servicer
Mac loan owned by Freddie Mac, and we are the servicer. THE COURT: All right. Thank you.
BY MS. HOLLADAY-TOBIAS:
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Q A Q
Are you familiar with securitized trust mortgages? Im familiar, yes. Do you know whether Ms. Mainess loan is part of a
securitized trust? A Q No, it is not. In your capacity as a bankruptcy litigation specialist
with Bank of America, are you familiar with activities, collection actions taken in reference to Ms. Mainess loan? A Q Yes, maam. In your capacity as a bankruptcy litigation specialist, do
you have access to records of Bank of America showing history and servicing of the loan? A Q Yes, I do. Have you reviewed the records of Bank of America relating
to the history and servicing of Ms. Maines loan? A Q Yes, I have. Based on your review of Bank of Americas records, do you
know whether Ms. Mainess loan has been satisfied? A Q It has not. Based on your review of Bank of America records and in
your capacity as a bankruptcy specialist, are you aware whether a satisfaction of the Deed of Trust or satisfaction of a mortgage has been filed in property records? A It has not. MS. HOLLADAY-TOBIAS: Your Honor, may I approach the
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witness? THE COURT: Yes.
BY MS. HOLLADAY-TOBIAS: Q Ms. Slyapich, I have handed you Exhibit 3 which was
offered by Ms. Maines earlier today at this hearing. THE COURT: Thats the Certificate of Acknowledgment? Yes, maam, with the attached
MS. HOLLADAY-TOBIAS: Deed. BY MS. HOLLADAY-TOBIAS: Q A Q
Have you had time to review this document, Ms. Slyapich? Yes, Ive seen this document. Was Exhibit 3, the Certificate of Acknowledgment for the
attached Deed dated February 21st, 2006, executed or signed by Bank of America? A No, it was not. THE COURT: You need her to testify about that? I
can read that with my own eyes. BY MS. HOLLADAY-TOBIAS: Q up. Ms. Slyapich, in connection with the -- excuse me, back In your capacity as a bankruptcy litigation specialist and
your knowledge of this loan, do you know whether any documents were filed by Bank of America concurrent with the Certificate of Acknowledgment or Deed? A No, there was not. MS. HOLLADAY-TOBIAS: I have no further questions for
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Ms. Slyapich, Your Honor. THE COURT: All right. Ms. Maines, you now have the
opportunity to cross-examine Ms. Slyapich concerning the things that she just testified about. CROSS-EXAMINATION BY MS. MAINES: Q A Q Im not sure how to pronounce your name. Slyapich. Slyapich. How long have you been employed by Bank of Slyapich?
America? A Q A Q A Q For a year. One year? Uh-huh. Were you employed by Bank of America in March of 2010? No, I was not. Were you made aware that BAC Home Loan Servicing, LP, had
sent me a document stating that the note had been lost as of March 1, 2011? MS. HOLLADAY-TOBIAS: Objection, characterization and
questioning without the document present for the witness to review. THE COURT: All right. Im going to sustain the
objection based on the fact that you have not laid a foundation for the question, which means youve got to get her to admit -youve got to get her to admit that the bank had lost it at
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some point in time, because basically youre saying that they lost it. BY MS. MAINES: Q A Q A Ms. Slyapich, have you reviewed the record in this case? I have. Are you familiar with Docket Number 130? I do not know all the documents that are on the docket by
memory. Q If you were to review a document, page 43 of 72, Document
-- Docket Number 130, would you be able to read it for the Court? THE COURT: with it. Show it to her. See if she is familiar
And you gave the pinpoint cite for that as Docket
Number -- you said 43? MS. MAINES: THE COURT: MS. MAINES: THE COURT: 130. 130; and its page? Page 43 of 72. All right. Thank you. You can stand
behind the lectern now. BY MS. MAINES: Q A You said you had reviewed the record? Uh-huh. THE COURT: You have to make your remarks audibly
like with a yes and no. MS. MAINES: Thank you.
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BY MS. MAINES: Q A Could you read the highlighted portion, please. Take notice that the original note evidencing your
indebtedness has been lost, misplaced, or destroyed and is unavailable. If you believe you may be subject to a claim by
another person or entity other than BAC Home Loan Servicing, LP, to enforce the note, you may petition the Circuit Court of Frederick County, Virginia, for an order requiring the beneficiary to provide adequate protection against any such claims. Q And the date of that document, the highlighted portion at
the top? A Q It was dated September 30, 2010. Thank you. THE COURT: Now, shes read it, but she hasnt
authenticated it, Ms. Maines. Maam, Ms. Slyapich, does that appear to be a document thats within the records that youve reviewed? THE WITNESS: docket. THE COURT: THE WITNESS: Well, is it within the banks records? I could not say for certain. I know it It is a part of a file document on the
is officially -- got a docket across the top. THE COURT: docket. Well, that means she put it in the
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THE WITNESS: THE COURT:
Uh-huh. Does it look like something that Bank of
America would send out typically if the bank couldnt find a note? THE WITNESS: This was not sent out by the bank; it And there is a
was sent out by counsel on behalf of the bank. second paragraph. THE COURT: All right.
Do you recognize that as a
document that was sent with the authority of Bank of America by its counsel, or do you know? THE WITNESS: THE COURT: BY MS. MAINES Q Does the home office Bank of America typically send I do not know. All right. Thank you.
notices like that by counsel to homeowners that their records -- Bank of Americas records show are in debt or in default? If a homeowner is in default according to Bank of America, does that document that you just read appear to be a template form that most attorneys would send out to homeowners when preparing for a foreclosure action? MS. HOLLADAY-TOBIAS: THE COURT: answer that. BY MS. MAINES: Q What is Bank of Americas standard operating procedure Objection to the relevance. So you dont need to
Ill sustain it.
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when an employee discovers that a homeowner is in default of a loan? MS. HOLLADAY-TOBIAS: MS. MAINES: Objection to the relevance.
Im trying to determine how Bank of
America contacted this counsel to initiate foreclosure actions when it states that the note was lost. Im trying to determine
in my mind how an employee of Bank of America would initiate a foreclosure action through their counsel when the only thing they have to rely on is what? BY MS. MAINES: Q What were you reviewing? Are you looking at a computer
screen?
Are you looking at original documents when you make
these decisions? THE COURT: You want to know why it is that the
foreclosure was started against you? MS. MAINES: THE COURT: Yes. Ask her that.
Why did Bank of America start a foreclosure against her? THE WITNESS: BY MS. MAINES: Q A Q A Lack of payments. According to what? Lack of payments.
According to the loan history; no payments were made. The loan history. And what loan history did you use?
The borrowers loan history.
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The borrowers loan history.
And how did you obtain the
information? A Q A Q
Did you input it yourself?
There is a loan history screen that we can obtain. Okay. It shows the history of the loan payments received. So youre saying you dont actually have the legal
documents or the instruments in front of you when you make a determination. You simply bring something up on a computer
screen and the computer screen tells you whether or not somebody may or may not be in default? MS. HOLLADAY-TOBIAS: compound. MS. MAINES: THE COURT: initiated. I dont think shes a competent witness. She wasnt there when the foreclosure was Objection to relevance,
Is that right? THE WITNESS: THE COURT: Thats right. You were asking her what the standard --
or what the -MS. MAINES: THE COURT: MS. MAINES: THE COURT: MS. MAINES: THE COURT: Standard operating -Standard operating --- procedures --- procedures are. -- or the standard practices. Okay. So they dont check to see -- your
point is they dont check to see that they have the original
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note, they go by the screen. MS. MAINES: THE COURT: MS. MAINES: in a computer. THE COURT: court? Well, isnt that a matter for the state Right. And how is that relevant here? Its hearsay. Anybody can put anything
Youre contesting here whether this bank should have
done something different based on my order, not whether their foreclosure would be valid otherwise. Im going to sustain your objection. The fact of the
matter is, the original note is here in this room. MS. MAINES: And it was nullified by a Note
Modification Agreement, so. THE COURT: MS. MAINES: THE COURT: the bank rests. Well, you can -- youll have -Thats a matter for the state court. Youll have your turn for rebuttal after
If you want to ask her about that while shes Ill
on the stand now, thats an appropriate area of inquiry. let you do that so that you dont have to re-call her. BY MS. MAINES: Q Ms. Slyapich, are you aware that there was a note
modification agreement done? A Q Yes. And do you recall what the note modification agreement
what the terms and conditions of it were?
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A Q is? A Q
No, I could not pull that off the top of my head. Do you know where the original note modification agreement
No, I do not. When a bank does a note modification agreement with a
borrower, once the documents are executed by both parties, typically does it go into effect? computer screen? A Q Yes, it is. So you would have known about the note modification And the numbers and figures that you rely upon to Is it updated on your
agreement.
do your job are based on the note modification agreement? MS. HOLLADAY-TOBIAS: compound. THE COURT: Ill sustain it. Break it down. You Objection to relevance, and
rely on -- you rely on a computer to accurately describe the payments that are due under a note modification agreement? THE WITNESS: THE COURT: MS. MAINES: THE COURT: Yes, we do. Okay. Thank you. All right. I have no further questions. Whats the name of the Is it Note and Mortgage? Is
agreement just so I have it down. it Note in Deed of Trust? MS. MAINES: THE COURT:
Is it Note Modification?
It is Loan Modification Agreement. Loan Mod. All right. Okay. I kind of
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interrupted you, Ms. Maines.
Did you have any other cross-
examination questions that was based on her direct testimony? MS. MAINES: THE COURT: cross? MS. HOLLADAY-TOBIAS: of questions. REDIRECT EXAMINATION BY MS. HOLLADAY-TOBIAS: Q Are you familiar with the Loan Modification Agreement that Yes, Your Honor; just a couple No, I do not. All right. Any redirect based on the
was referenced by Ms. Maines a moment ago? A Q I have seen it. Based on your review of that document, do you know whether
it replaced the original Promissory Note or modified the terms? A It modified the payment terms. MS. HOLLADAY-TOBIAS: THE COURT: Slyapich. Anything else, Ms. Holladay-Tobias? MS. HOLLADAY-TOBIAS: time, Your Honor. THE COURT: testimony, Ms. Maines? Okay. Any rebuttal documents or I have nothing further at this All right. No further questions. You may step down, Ms.
This is where now the burden shifts
back to you after you proved certain things and they made their rebuttal -- excuse me -- theyve made their opposition. And
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now you have an opportunity to wrap it up with rebuttal testimony or evidence. MS. MAINES: I appreciate your guidance. The only
rebuttal I have is that I dont believe that an employee of Bank of America who has been there less than a year has the depth of knowledge of the consequences of her testimony and how it could affect many homeowners across the country. THE COURT: No; we only care about you right now.
She testified to the chain of ownership and the merger. She testified that the loan is not a part of a
securitized trust, which to me would be encouraging because the opportunity to modify it or settle it is greater than if it were. She was familiar with the history of the loan through, I guess, computer records, that the loan still shows as outstanding, that no satisfaction has been filed, that your Exhibit Number 3 was not executed, signed or acknowledged by anyone with the bank. That -- I think that a fair construction of her testimony is that page 43 that you showed her out of Docket 130 is something that she probably would not question as having come from Bank of America, although she cant authenticate it. And that she is aware that a loan modification agreement exists, and that the modified payments would have been added to the computer screen. And so Im not sure that she did testify
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about anything that would harm people generally. MS. MAINES: THE COURT: MS. MAINES: THE COURT: rebuttal case? MS. MAINES: THE COURT: rested. Nothing in the rebuttal, no. Okay. All right, then, both parties have At this point in time well Thats well stated -- well phrased. Okay. Anything else --
Very well paraphrased. Anything else you want to raise in your
The trial is concluded.
take the legal arguments where you will tell me what you believe that you -- that the facts show and what the law -- how the law applies to those facts to lead me to believe that I should rule in favor of Ms. Maines or, alternatively, in favor of the bank. And one thing, Ms. Holladay-Tobias, I want you to focus in on, because I do, is that Ms. Slyapich said that this loan is owned by Fannie Mae. MS. SLYAPICH: THE COURT: Excuse me, maam, Freddie Mac. And so I dont
Im sorry, Freddie Mac.
know why possession in your hands means the Bank of America owns that note. All right. Ms. Maines, you have the right to start
with your closing argument because you have the burden of proof. So you tell me what you think the record shows and why And I do
under the law, and which law, you believe you win.
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want you to address the rules that talk about the consequences of a dismissal and the consequences of a motion for reconsideration that is filed timely. MS. MAINES: Motion -THE COURT: The consequences of a dismissal of the Im sorry, could you repeat that?
case under the Bankruptcy Code and the consequences of a timely filed motion for reconsideration. Because based on my reading
of the rule and the Code, Im not sure how much stock you can put on my order. And we are not trying the motion for That is not the issue that were
reconsideration today. trying. MS. MAINES:
The issue were here about today is the
motion on contempt, for a permanent injunction, and for sanctions for violation of a court order. THE COURT: One moment please.
(The Court speaks to the courtroom deputy) THE COURT: MS. MAINES: All right. Thank you. Go ahead. Mens right of contract is
considered very fundamental, so fundamental that even under Roman law and its system of domestic slavery all men, whether citizen or not, retained -THE COURT: If youre reading -- do me a favor, if
youre reading from something, you have to read it slowly in respect for Ms. Taylor who is taking down this record. So just
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read it -- you can read it, I dont mind that, just read it more slowly. book. MS. MAINES: THE COURT: MS. MAINES: THE COURT: MS. MAINES: Oh. Maybe not that slowly. Ill start again. Okay. Mens right of contract is considered so Pretend like youre reading a child a bedtime
fundamental that even under Roman law and its system of domestic slavery all men, whether citizen or not, retained this fundamental right. It is understood to derive from a mans
creator and therefore is unalienable without his consent or waiver. A mans right of contract can only be contracted away. It is
The trust implied right of contract is alienable.
transferable to another person by a trustee or by a court of equity in the event that a trustee should choose or by such court should equitable jurisdiction arise. Since the issue before us today is very, very simple; its: Did this Court have jurisdiction after proper notice was
given to all parties, proper opportunity to be heard was given, and after all facts were presented was an order issued, and did that order -- was it a valid order, or is it a void order? If its a valid order, then its been published on the public record. And after all the parties involved received
notice of that order, if one party chooses to act in violation
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after receiving notice, theyre held in contempt. definition of contempt.
Thats the
In Elliott, et al v. Piersol, et al, 26 U.S. 328, it states, Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if
it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form
no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; and all
persons concerned in executing such judgments or sentences, are considered, in law, as trespassers. My position is that Bank of America is a trespasser; that while this Court had full jurisdiction, a petition to this Court was made for dress of grievances suffered, and that when relief was granted, they acted in direct violation of this Courts authority. THE COURT: MS. MAINES: Anything else? I think its the most basic duty of a The law is written, and I think
court to uphold and enforce the law. its been violated.
I think it should be enforced.
thats the duty of the court.
I think that my position here,
that the Court granted me relief and others violated the Courts authority. And I believe the Court should enforce its
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authority. THE COURT: All right. Thank you.
Ms. Holladay-Tobias. MS. HOLLADAY-TOBIAS: Thank you, Your Honor. Bank of
America does not contest that this Court had authority to enter the order it did during the bankruptcy case. However, it is
the banks position that the bankruptcy case was in fact dismissed. There was no discharge and there was no plan
confirmation. Under Title 11, Section 349, specifically 349(b)(3), upon a dismissal, unless the dismissal order states otherwise, a property is reverted to the estate and the entity in which the property was vested immediately before the commencement of the case. Several courts have held that property rights include a security interest in property, such as a mortgage or a lien. Cases that have held this include In re Groves, which is found at 27 B.R. 866, which is a bankruptcy case out of the District of Kansas. And also In re Booth, 289 B.R. 665, which is a
bankruptcy case out of the Northern District of Illinois in 2003. THE COURT: Even where the lien was determined by
court order not to even exist by virtue of, well, whatever the insufficiencies might be. MS. HOLLADAY-TOBIAS: In this case -- there are some
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cases that talk about disallowance of the securetized or the lien itself. Those cases include Mirzai v. Kolbe Foods,Inc.,
which is 271 B.R. 647. THE COURT: Do you have a copy of that? I do.
MS. HOLLADAY-TOBIAS: THE COURT:
Do you have one for Ms. Maines? I do.
MS. HOLLADAY-TOBIAS: THE COURT:
This is not a case where there was a
strip off or a cramdown, which tends to eliminate or reduce a lien because of the artificial provisions of the Bankruptcy Code. This is a case where she alleged that the bank held no And so youre arguing that 349
secured claim on the merits.
would apply to disallowance under that scenario? MS. HOLLADAY-TOBIAS: Yes, Your Honor. In fact, in
this case, just to reset a little bit, the Court entered the order reclassifying the claim to an unsecured claim because prior counsel for Bank of America failed to attend a hearing to provide proof of the claim. There was a motion for reconsideration filed which was never heard. Prior counsel stated that they missed the
hearing due to a calendaring error. In Mirzai, which I have handed you, there was a proof of claim filed by Kolbe Foods. An objection to the claim was
filed by the debtor, and the objection was granted and the claim was disallowed in its entirety. Then the debtor
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voluntarily dismissed the case before a discharge or plan confirmation, which is very similar to our case here. In that
case, the district court held that the disallowance order was not entitled to res judicata effect as it was not considered a final order. Specifically -Where are you? What page?
THE COURT:
If you go to -- the page
numbers at the bottom of the page -- page 5 -THE COURT: Okay. -- in the discussion section.
Its entitled, A. Res Judicata. THE COURT: Yes? Theres a discussion here that
the borrower contended that the bankruptcy court disallowing a proof of claim was a final order and entitled to res judicata effect. And the debtor further argued that the dismissal of
the Chapter 11 case left intact the order disallowing the proof of claim. THE COURT: Which is what Ms. Maines says here. Which is exactly what Ms.
MS. HOLLADAY-TOBIAS: Maines is saying here.
The court then goes on to talk about
the purpose of Section 349, which is to undo the court order disallowing the proof of claim in the first Chapter 11 case. Down here where it starts Head Note 5: Governs the
effect of dismissal of the bankruptcy case, provides that
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certain orders and judgments vacated by a dismissal, unless preserved by the bankruptcy court for cause. A disallowance of
a proof of claim under Section 502(b), however, is not specifically enumerated. So theyre indicating that its not
a specifically enumerated reason for a discharge. But they go on to note that the order disallowing the proof of claim was not preserved. The court further notes that
the intent of 349 was to undo the bankruptcy case as far as practicable and to restore all property rights to the position in which they were found at the commencement of the case, which included -- skipping down a little bit -- the return of the status quo. The next paragraph: The dismissal of the bankruptcy The court
case does not entitle the debtor to a fresh start.
also then goes on to cite two other cases which the bank feels are persuasive, which are, In re Case, and Williams v. Stewart, both of which -- just to summarize here briefly, the debtors in those cases requested that certain orders during the bankruptcy case -THE COURT: Be preserved. -- be pending after dismissal.
MS. HOLLADAY-TOBIAS: Im sorry. THE COURT:
Be preserved. Be preserved, sorry. Be
preserved following the dismissal.
And in both of those cases,
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the courts held that the orders did not survive the dismissal because otherwise it would essentially give the debtor the benefit of the bankruptcy without having gone through plan confirmation or discharge. And if you go onto page 6, the second column -THE COURT: Yes? -- it says: Here the
bankruptcy court properly found that the order disallowing the proof of claim was not final and therefore was not entitled to res judicata effect once the case was dismissed. essentially what we are arguing here. Here the case was not disallowed in its entirety as in Mirzai, but it was disallowed as to the secured status. And Which is
one other thing I would point out in Mirzai*, its noted also on page 6 in the second full paragraph, is that in that case the proof of claim was denied due to a proof defect, a technical defect. Kolbe Foods could not show that it had a And the Mirzai
corporate status; the status was suspended.
court further said that given this technical defect that could be cured was further reason not to give effect to the order to allow it to be preserved following dismissal. THE COURT: All right. Anything else? Yes, Your Honor. I have cases
that I can give the Court generally stating that dismissal puts all creditors in the same position that they were on the date
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of the filing of the petition, which would essentially revert BANA back to whatever status it may have held prior to the Petition, and then the parties can fight it out in state court as to whether BANA is the rightful holder or not and the standing to foreclose. Your Honor inquired regarding the impact of this being a -THE COURT: Freddie Mac? -- Freddie Mac-owned mortgage.
MS. HOLLADAY-TOBIAS: Under the UCC -THE COURT: right? MS. HOLLADAY-TOBIAS:
Youre talking about Virginias now;
Yes.
Yes, Your Honor.
Under
Virginia Code 8.3-301, the right of a party to payment under a negotiable instrument depends on his status as a holder. And a
holder is further defined as one who is in possession of an instrument issued or endorsed to him or to his order, to bearer, or in blank. That second definition is found at
Virginia Code Section 8.1-201, Section 20. And there are several cases in Virginia talking about the status of a note holder and their ability to foreclose, including Becker v. National Bank and Trust, which is found at 284 S.E.2d 793, which is a Virginia Supreme Court case. THE COURT: So basically, if the servicer holds it,
the servicer is considered to be the owner for purposes of the
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foreclosure? MS. HOLLADAY-TOBIAS: THE COURT: Correct.
And then the servicer just needs to deal
with the fact that its got someone else that claims to be the owner. MS. HOLLADAY-TOBIAS: Correct. And further, I mean,
as long as you are the holder, the mortgage, for purposes of UCC law and Virginia law, the mortgage transfers in equity to the holder of the note for purposes of enforcement. THE COURT: What if the holder stole it? What the UCC law is is that the
holder of the note, provided it is endorsed to him or endorsed in blank, is the rightful holder. Generally, courts do not
inquire further to defeat standing provided the initial threshold is met. THE COURT: What happens if Freddie Mac one day comes
after Ms. Maines and says, pay me, after shes already making payment arrangements with Bank of America? MS. HOLLADAY-TOBIAS: on behalf of Freddie Mac. THE COURT: Well, I get that. But what if, like I Well, Bank of America is acting
said in, lets say, the absurd example that the note was stolen -MS. HOLLADAY-TOBIAS: THE COURT: In the event that --
-- and then a rightful owner comes around
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and says:
Nope, that note was stolen right out of my file by
one of those robo signers we used to have, and so its really not owned by Jane Smith? MS. HOLLADAY-TOBIAS: Well, then, Ms. Maines would
have the defense that she was dealing with a person that she understood to be the holder and possessor of the note with authority to act on its behalf. THE COURT: All right. Anything else? No, thats it, Your Honor.
MS. HOLLADAY-TOBIAS: THE COURT: Okay.
You have the right to give a brief
rebuttal argument, in particular, the case law seems to suggest that 349 puts everyone back to the status quo and that my order doesnt mean anything after you dismiss it unless you had asked me to preserve it, which you didnt. And if you had, according
to some other cases, it might be improper for me to have preserved it. We also have a motion for reconsideration thats never been heard. I will give you all -- let me ask Ms. --
make sure Im going to say this right -- Slyapich, do you have authority to settle this case with Ms. Maines today? MS. SLYAPICH: THE COURT: I do.
I will give you a half an hour and only a
half an hour to go down the hall to Judge Williamson and he can pick up where Judge Porcelli left off. You all know what the And Ill give you a
record shows; you know what the law shows.
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half-an-hour chance to try to get to settlement. Ill make my ruling.
And if not,
Would you like to have that opportunity, maam, Ms. Maines? MS. MAINES: Sure. Thank you, Your Honor. Go on down -- go outside here
and then go down the hall to the south and then take a left when you get to the end and go on back. Ms. Garcia, will you let Judge Williamson know that the parties are headed there. I will brief him. (Recess held from 3:30 p.m. to 4:11 p.m.) THE COURT: All right, Ill poll the parties. Is Im going to meet them there and
there a need for me to announce my ruling, yes or no? MS. MAINES: Yes. Yes, Your Honor.
Miss Garcia, do you have all the exhibits that you can hand up to me, please? Im going to deny your motion, Ms. Maines, and heres why: I find that the record reflects the following based on
judicial notice of the record and the contents of certain matters of record. The Chapter 13 Trustee did move to dismiss
your case based on nonpayment on August the 20th of 2010, and
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thats at Docket Number 111.
And thats really rather
irrelevant because its the matters that appear after that that are whats at the crux of this dispute. On the same day, I entered my order disallowing Bank of Americas claim and characterized -- secured claim, and characterizing the claim as unsecured -- thats at Docket 112 -- and that was after a default. Seven days later, a motion for reconsideration was filed by Bank of America that would meet the requirements of Rule 9023 or 9024 if the allegations were proved. was filed timely under either 9023 or 9024. And so as a matter of the record at the time, before me there was a dispute and a request that I rehear the matter so that I dont resolve the matter by default but rather on the merits. On September the 8th, you filed a motion to dismiss your case voluntarily. And at the time, you did not couple That motion
that with a request that I preserve the order disallowing the claim as secured and allowing it as unsecured, nor did you ask me to retain jurisdiction to dispose of the motion for reconsideration. Now, it is true that the original Promissory Note is physically in this room today, and all I can say is that today the holder of the note is Bank of America. Whether that holder
status is impressed with some duty to do something on behalf of
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the original owner -- or the actual owner, I should say, of the loan, is irrelevant because the UCC does say that the holder of the note is permitted to exercise or assert, at least, the rights that a holder has under the note. Now, back in the time period after September the 8th when you sought to dismiss the case or we actually dismissed the case, and that date is a matter -- is on the docket -- but if its after dismissal and before today, I dont know who the holder was or is, and I can make no determination on that because there was no proof about who has held the note since the case was dismissed up to the time of today. I think a fair inference is that Bank of America has held it all along, although there was a suggestion in the record based on a document that couldnt be authenticated that at some point in time Bank of America thought it lost the note. Anyway, todays record doesnt establish one way or the other the ownership of the note at any time other than today. Now, the Deed that you referred to in your opening statement and is in evidence as Exhibit Number 2 is really rather irrelevant to your case, Ms. Maines. All that is is a
transfer of fee title from your former spouse to you so that youre the sole fee-title owner of that property. page 2 of that note -- excuse me -- Deed says: And in fact,
This conveyance
is made subject, however, to all rights, rights of way and easements of record, if any, affecting the aforesaid property.
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You went ahead and you accepted that Deed on its terms, and thats evidenced by Exhibit 3. those that Ive just found. Now, what is the effect of the dismissal? argued that my order sticks no matter what. But Im Youve And so the facts are
constrained to follow the law, as you said, and the law says, and Section 349 specifically says what it says. And although
the law that you cited is very good law in a vacuum, were not in a vacuum; Im stuck with the Bankruptcy Code. Now, I have to tell you that the case that Ms. Holladay-Tobias cited me, and I dont know if you had a chance to read this, but the Mirzai case, M-i-r-z-a-i, is -- its pretty on point in terms of the facts of that case and this case. There is some language in that decision thats
attractive to me insofar as it talks about the technical reason for the denial of the claim in the Mirzai case. Im not sure I would go as far as the California court went in this Mirzai case. If I had had a full-blown
hearing on the merits and I had disallowed the claim because they didnt -- couldnt prove it, didnt have it, I dont think that this Mirzai case should apply because I dont -- I believe in finality. And if there had been a trial and proofs and everything, I dont see why that kind of an order would not be given res judicata effect. Because if its tried once, no
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matter -- anywhere on whether someone holds the claim or not, thats it. You shouldnt get two bites at the apple. If Bank of America couldnt proved it in the bankruptcy case, then they shouldnt get a second bite outside of bankruptcy. So I dont believe that, in particular, based
on the facts of this case, that I would follow Mirzai 100 percent. 349 talks about liens that are avoided and things like that. I think its different, and its to be
distinguished if youve got a claim that doesnt exist in the first place. Its different if you cramdown a lien or you But Im not so sure I would buy into all of
strip off a lien.
the holding of this case. But what is attractive is the language that says where its been done on a technicality, there hasnt been a full-blown trial on the merits. Im not -- I think that 349
would provide the rule of decision here. And I know that we havent had the hearing on the motion for reconsideration. Now, the motion for
reconsideration, thats an odd duck because its effect on my order, and none of the parties discussed this, but Rule 62 of the Federal Rules of Civil Procedure says that a final order or judgment is stayed, meaning its not effective until a motion under Rule 59 of the Federal Rules or 60 of the Federal Rules is disposed of.
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Now, our counterpart to Rule 59 and Rule 60, our counterparts are 9023 and 9024. Rule 62, though, in bankruptcy
only applies to adversary proceedings, not contested matters like this one. And we know that because Rule 9014 is the rule
that says unless you ask for it, then it doesnt apply to a contested matter, and it gives the list of the ones that automatically apply. But outside of the ones that Rule
automatically apply, you have to ask for it, Rule 9014. 62 is not in there.
And so as a matter -- if you didnt have 349, the appropriate response by Bank of America would have been to ask that Rule 62 be applied to the contested matter, because that order was final. Now, 369, however took effect the minute you dismissed the case, Ms. Maines. I dont know whether you did I know you didnt have the
that as a tactical matter or what.
money to pay into the Plan, but perhaps conversion to a 7 would have been better for you because then you dont have 349 kick in. And, you know, its -- I dont fault you, Ms. Maines, I had an order; it was an unstayed order. And then you had
349, which, when you look at it, it doesnt jump out at you that its going to be the controlling statute. But when you go
to law school, and maybe one day you will, youll learn that its not the words of the statute that really controls, its
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the judicial gloss or the judicial spin on how the courts interpret it. And clearly if I thought that Mirzai was 100 percent controlling, I would have said this isnt even a close case. But because of the technicality, I am going to deny your motion for an injunction and for contempt. Now, where do we go from here? You have a couple of I still
choices, and Im going to ask for a consensus on this. have a motion for reconsideration pending.
I have a case I dont know
thats opened -- or reopened for specific things.
whether you want me to go ahead and rule on the motion for reconsideration here; or do you want to have me decide it by entering an order denying it as moot because of 349, because the original note isnt effective anyway, and then in that case youd go over to your state court and battle it out there. MS. HOLLADAY-TOBIAS: Bank of Americas preference
would be to deny the motion for reconsideration as moot and have any arguments Ms. Maines would have to challenge it brought in the state court proceedings. THE COURT: You know, frankly, for your purposes, Ms.
Maines, I dont know how long its been since you made a payment, but certainly youll be buying more time if you duke it out in state court. I dont know where you live. MS. MAINES: Do you live down here?
Ive been a resident of Florida since
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July of 2009. THE COURT: MS. MAINES: THE COURT: MS. MAINES: THE COURT: MS. MAINES: THE COURT: MS. MAINES: for my children. THE COURT: MS. MAINES: Okay. But I have another party knocking on the Okay. Why do you want that house?
Its the only asset I have left. But you dont live there. Its the only income I receive. Its rented? Yes. I see. I intended to sell it to create a trust
door trying to steal it. THE COURT: Since this dispute between the two of you
now is not really a part of the bankruptcy case, because we dont really have a case, I dont have what they call core jurisdiction to determine it. So unless you both consented, I
couldnt hear the merits of the claim. But what I will do is I will enter an order denying your motions as moot. I will clearly indicate that I make no
determination on the merits of the dispute and that the parties are free to litigate the issues elsewhere. I think that the only res judicata effect of my ruling today is that as of today, this moment, Bank of America holds the note. And I think thats the only finding that I
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think anyone can use out of this trial.
But I was very careful
because I dont know who owned it back when, and I dont know wholl own it tomorrow. So I -- thats what Ill do. Ill deny -- excuse me
-- Ill deny your motion based on the trial, and Ill deny your motion for reconsideration as moot, saying that I do not -- Im not ruling on the merits of the motion for reconsideration at all. So the fact that Bank of America claims it has a claim, Im just going to deny it as moot.
thats not any basis.
And in the meantime, I urge you to go ahead and continue to discuss settlement. record that you made. There is an admission in this
I believe you said that you didnt
dispute that you hadnt paid it. Admissions that come out of this record are admissible in trial in state court as an exception -- well, I dont know under your state law whether its an exception to hearsay or if its considered non-hearsay in Virginia. thats something that you may see revisited upon you. MS. MAINES: Refusing to make payment to a thirdBut
party interloper is no different today than its ever been. THE COURT: that. I asked: Well, I asked Ms. Holladay-Tobias about And she said
What if the note were stolen?
the proper defense -- and I havent studied this, and I cant represent you -- a proper defense in that circumstance would be that you pay the holder. And once you get the note back, if
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you pay the holder, whether its a thief or Ms. HolladayTobias, whatever, once you hold the note, nobody else can sue on it. MS. MAINES: I think its an issue for retired Chief
Judge John Prosser that gave me the Deed. THE COURT: it, youre pursing it. Okay. Well, however you want to pursue
But I am not determining the merits of
who holds the claim, whether the claim was valid at any point in time. it. Today the note is held by Bank of America, and thats
Thank you all. MS. MAINES: Thank you for your time. Thank you for your time, Your
MS. HOLLADAY-TOBIAS: Honor. THE COURT:
Good luck with your litigation or
settlements as the case may be. (Hearing concluded at 4:34 p.m.)
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CERTIFICATE OF REPORTER
STATE OF FLORIDA COUNTY OF HILLSBOROUGH
) )
I, MARILYN L. TAYLOR , Official Court Reporter and Notary Public, do hereby certify: That the foregoing hearing was reported by me at that time and place therein designated; and that the foregoing pages were transcribed by me and constitute a true and correct copy of the stenomask report. I FURTHER CERTIFY that I am not a relative, employee, attorney or counsel of the parties, nor a relative or employee of such attorney or counsel, nor financially interested in the foregoing action. BE IT KNOWN that I shall not attest to the accuracy nor content of any other than the original transcription herein set forth, excepting copies that are made by me by whatever means, containing my original signature only. WITNESS my hand and seal this 23rd day of March 2012 in the City of Tampa, Hillsborough County, Florida.
Marilyn L. Taylor, CVR Certified Verbatim Reporter Notary Commission No.EE004088 Expires: October 25, 2014

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Case 8:10-bk-05213-CPM

For Bank of America, N.A.:

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

INDEX TO EXHIBITS DEBTORS EXHIBITS Exhibit Description Admitted Page 26

BANK OF AMERICAS EXHIBITS Exhibit 1 Original Promissory Note Page 40

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 client? 5213. THE COURT:

P R O C E E D I N G S COURTROOM DEPUTY: Marsha Maines, Case Number 10-

MS. HOLLADAY-TOBIAS: name is Sarah Holladay-Tobias.

MS. HOLLADAY-TOBIAS: THE COURT: BANA?

BANA will be fine.

MS. HOLLADAY-TOBIAS: THE COURT: B-A-N-A?

MS. HOLLADAY-TOBIAS: THE COURT: And? MS. SLYAPICH: Got it.

Your Honor, Im Karen Slyapich.

MS. SLYAPICH: THE COURT:

C-h? Uh-huh. Thank you.

MS. SLYAPICH: THE COURT:

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

Do you have a last name?

MR. SHADWELL: THE COURT:

C-h-a-d-w -S-h-a, Shadwell. Thank you. And in the back?

MR. SHADWELL: THE COURT:

And on my side, this is David

Were scheduled for trial today on the

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

It looks like Ms. Maines served Jon

Samuel I. White, PC, hasnt been

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

submitted with the Court as an exhibit is the deadline and

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

hearing template thats found on the Courts own website.

COURTROOM DEPUTY: THE COURT:

Pardon me? Its on the docket. Someones already scanned it in.

COURTROOM DEPUTY: THE COURT: All right. Okay.

CM/ECF system. deadlines were.

Okay, Miss Garcia, her cover sheet

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

You can use this as your exhibit grid.

Heres your cover

Within your docket entry you have your

Yes, maam. Okay. Now, also within that same filing,

-- said it had to be faxed -- we both

page Debtors objection, a copy of the fax transmissions

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

So the last three pages -- wait, the last

Its in the docket entry. That should be stricken. Thats not

Well, Ill tell you what, Ill just throw

Now, theres pages that start with Gmail, and then

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

All this is is the attempting to show

I just put it on the

Im going to keep the four pages of

So, let me give to Ms. Garcia what Ill

she needs, which is the exhibit and the exhibit grid.

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

You even stated for the court you afforded

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

So each -- but they did have one attorney.

JOHNSON TRANSCRIPTION SERVICE - (813) 920-1466

Correct. Okay. So I have a disallowed claim. You

You have a disallowed claim.

allowed it as an unsecured, non-priority claim.